Delhi District Court
Shri Chunni Lal Alias Nizamuddin vs Shri Tula Ram S/O Shri Inche Ram on 31 October, 2012
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No. 576/2010
IN THE MATTER OF:
Shri Chunni Lal alias Nizamuddin
son of Late Sh. Hazari Lal through LRs.
a) Sh. Sube Singh ( son)
S/o late Shri Chunni Lal
b) Sh. Sukhbir Singh (son)
S/o late Shri Chunni Lal
Both Residents of V. P. O. Mundka, Delhi.
......Plaintiff
VERSUS
1. Shri Tula Ram S/o Shri Inche Ram
Through legal heirs
a) Smt. Chhoto Devi
wife of late Sh. Tula Ram
b) Sh. Attar Singh
c) Sh. Balwan Singh
Both sons of late Sh. Tula Ram
d) Smt. Bimla Devi
wife of late Shri Kanwar Lal, Predeceased
son of late Sh. Tula Ram
e) Sh. Jai Bhagwan ( minor)
S/o late Shri Kanwar Lal, Predeceased
son of late Sh. Tula Ram
f) Smt. Burfi Devi
W/o Late Shri Dhani Ram, Predeceased
S/o late Sh. Tula Ram
g) Sh. Subhash
Suit No. 576/2010 Page No. 1 of 12
S/o Late Shri Dhani Ram, Predeceased
S/o late Sh. Tula Ram
h) Shree Bhagwan
S/o Late Shri Dhani Ram, Predeceased
S/o late Sh. Tula Ram
i) Sh. Govinda ( minor )
S/o Late Shri Dhani Ram, Predeceased
S/o late Sh. Tula Ram,
Through his mother Smt. Burfi Devi
All resident of Village & P.O. Mundka, Delhi
2. Balbir Singh S/o Sh. Sher Singh
3. Sh. Mam Chand S/o Shri Phattan
All resident of Village & P.O. Mundka, Delhi
....Defendants
Date of Institution: 04021992
Date of Reserving for Judgment: 05102012
Date of Judgment : 31102012
SUIT FOR PERMANENT INJUNCTION
JUDGMENT:
1. By way of this judgment, I shall decide suit for permanent injunction filed by the plaintiff.
2. The brief facts of the case as per the plaintiff are that, the plaintiff is the permanent resident of vill. Mundka, Delhi and is the owner and in possession of a Gher in the old lal dora of the vill. Mundka, Delhi having its old Kh. no. 3227 of the 1872 Khasra 'Pamaish'. Suit No. 576/2010 Page No. 2 of 12 The measurement of the Gher is 5 Gattas in the East, 2 Gattas in the West, and 10 Gattas each in North and South, which is also shown in the revenue record of the vill. Mundka, Delhi and bounded as under: East: Kh. no. 3226 (old) West: other's property North: Kh.no. 3228 (old) South: Rasta and other's property The property is shown in red colour in the site plan attached.
3. The plaintiff is the owner in the possession of the aforesaid plot/gher has inherited from his forefathers. Previously the plot was in the name of grand father of the plaintiff Sh. Dilpat Singh which the plaintiff inherited after the death of his grand father Sh. Dilpat Singh and father Sh. Hazari Lal, and is enjoying the ownership and possession of the same till today without any interference or interruption from any corner. Old bricks belonging to the plaintiff are lying upon the suit property till date. The defendants are the allottees of the residential plots in the extended phirni which have been allotted to them in the consolidation of holdings shown in blue colour in site plan. The ingress and outgrace of the residents of extended phirni if from the northern Suit No. 576/2010 Page No. 3 of 12 side and which has been more specifically shown in the site plan. The property/vacant land of the plaintiff since the old time was being used as Gher/Gitwar but since other people in the old Lal Dora constructed houses upon their respective plots, the plaintiff also wanted to do the same. In the month of December, 1991 with the intention of constructing residence upon his ancestral property when the labourers of the plaintiff started digging the suit plot, the defendant along with a few other men came to the plot of the plaintiff and asked him to sop work. On the plaintiff's refusal to stop work they started hurling abuses and threats at the plaintiff and his laboureres, when the plaintiff refused to bow to the threats of the defendants they elft the spot. Thereupon the defendants went to the local police station and lodged a false complaint against the plaintiff and in connivance with the local police, got police proceedings initiated against the plaintiff in pursuance of a false case registered under Section 107/11 Cr.P.C. The plaintiff alonwith some elder and respectable people of the village tried to advise the defendants and asked them not to be so adament nd not to do any illegal and wrong acts as the defendants have no right to have a rasta through the plot/gher of the plaintiff. The defendants flatly refused to hear and body and openly threatened Suit No. 576/2010 Page No. 4 of 12 the plaintiff that they would illegally encroach upon the ancestral land of the plaintiff and would convert it into a Rasta. It is further submitted that on 01.02.1992 when the plaintiff was present on his plot, the defendants came to the spot and started making passages at the plaintiff and claiming that they were soon going to be owners of the plaintiffs land and make it a common rasta.
4. On the other hand, the case of the defendants is that the suit of the plaintiff is not maintainable as it does not disclose any cause of action in favour of plaintiff and against the defendants. The plaintiff has suppressed the material facts as he has not filed the latest revenue records which clearly shows the factual position. After consolidation operation of the year 197879 the new numbers has been alloted to old Khasar numbers. The new AxSazara has been made in which all the existing factual position of various properties/plots and RastasPassagesstrees are shown. Accordingly to this exsazara there is no plot of plaintiff, at the alleged site. However,there exists a street no. 589. coming from north side to south side emerging in Rasta no. 167 coming from East to West side. The exact factual position is shown in the site plan attached in the written statement. The suit property is a joint of two common passages and a part of both Rasta no. 589 and Suit No. 576/2010 Page No. 5 of 12 Rasta no. 167. It is the only passage for the residients of properties situated both sides of Rasta no. 589 leading to common JohrPond of the village Mundka, Delhi and to the Rasta gong to Phirni road. The water of Rasta no. 589 also falls in the village pond through this Rasta. Moreover this factual position exists from decades and there is no signs of any possessionGher of the plaintiff at the suit property. Further the defendant denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be dismissed.
5. The plaintiff has filed replication to the written statement filed by the defendant. In his replication the plaintiff has reaffirmed the contents made in the plaint and denied all the allegation made by the defendant in his written statement and further submitted that the suit of the plaintiff be decreed .
6. On the basis of the pleading of the parties following issues were framed vide order dt. 30052000:
i) Whether the plaintiff is entitled to the relief of permanent injunction? OPP
ii) Whether the plaintiff has concealed the material facts and therefore not entitled to the relief? OPD
iii) Relief.
Suit No. 576/2010 Page No. 6 of 12
7. To prove his case the plaintiff has examined Sh. Jain Singh as PW1. PW1 was examined and crossexamined by the Ld. counsel for the defendant. PW1 has relied upon the document Ex.PW1/A which is Axs Sizra. Further the plaintiff has examined Sh. Prem Prakash , Kanoongo as PW2. PW2 has relied upon the document which are as under:
i) Record of ownership pertaining to the Khasra No. 3227 is Ex. PW2/A
ii) Photo copy of the paimais of 1880 in Khasra No. 3227 is Ex. PW2/B.
iii) Record pertaining to the year 1872 to 1880 & 190809 is Ex. PW2/C to PW2/E.
8. Further the plaintiff has examined Sh. Rohtas Singh as PW3 who was also crossexamined by the Ld. counsel for the defendant.
9. The plaintiff has also examined Sh. Sukhbir Singh PW4. PW1 has filed his evidence by way of affidavit Ex. CX. In his evidence the PW4 has reiterated the facts mentioned in the plaint and relied upon the following documents:
i) The Site plan of the suit property is Ex. PW4/1.
ii) The Aks Sizra dt. 11042000 is Ex. PW4/2.
The PW4 was also crossexamined by the Ld. counsel for the Suit No. 576/2010 Page No. 7 of 12 plaintiff at length.
10.On the other hand the defendant has examined Sh. Vijender Patwari as DW2 who has brought the original sizra Ex. PW1/A, he was also crossexamined by the Ld. counsel for the plaintiff.
11.I have heard Ld. counsel for both the parties, perused the record & gone through the relevant provision of law.
12. My issues wise findings is as follow: I shall take the issue No. 2 first.
13. Issue No. 2 Whether the plaintiff has concealed the material facts and therefore not entitled to the relief? OPD The burden to prove this issue was on the defendants but the defendants have neither led any evidence in this regard nor otherwise proved this issue. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
14.Issue No. 1 Whether the plaintiff is entitled to the relief of permanent injunction? OPP The witness Sh. Jai Singh, PW1, Halka Patwari stated in his examinationinchief that during the consolidation proceedings of the year 197677 the khasra no. 370 or the land of old lal dora was not touched upon. During consolidation the possession of persons of old lal dora has not been touched. He proved the Aks Sazra of Suit No. 576/2010 Page No. 8 of 12 village mundka as Ex. PW1/A and stated that as per the record maintained for the ingress and egress of persons of plot no. 586 88, 596/12, 590 and 591 a rasta from east side to west side is there and there is no rasta in the old lal dora. Rasta no. 589 does not go through in the old lal dora. Pw2 Sh. Prem Prakash, Sadar Kanungo proved the Missil Hakiat/record of ownership Ex. PW2/A and as per the said record of the year 1880 Sh. Dilpat and Baal have been shown in possession of gitwar of two Biswas in khasra no. 3227. He also proved the paimaish of the year 1880 as per which khasra no. 3227 of old lal dora which is now khasra no. 370 is shown in the ownership and possession of Sh. Dilpat. He also deposed that the record of the old Lal Dora was not part of the consolidation proceedings. However in his crossexamination he stated that he does not know anything about the consolidation proceedings for the year 197677 or thereafter. Sh. Rohtash PW3 deposed that the suit property was earlier in possession of the plaintiffs father Sh. Chunni Lal and now in the possession of the plaintiff.he denied the suggestion put to him during the cross examination that the rasta no. 589 and 167 join together and there is no suit property. He also denied that the villagers use rasta no. 167 and 589 and there is no suit property in between. He denied Suit No. 576/2010 Page No. 9 of 12 the suggestion that there is a drain coming from the side of passage no. 589 and falling on the pond after passing through passage no. 167. He stated that there is collection of water by the side of the plot of Chunni Lal. Further, DW2 Sh. Vijender, Patwari, stated in his crossexamination that the rasta in the sizra does not touch the house of the plaintiffs or the rasta in the extended phirni bearing no. 589.
15.The defendant has submitted that there is nothing on record to show that Sh. Dilpat is the ancestor of the plaintiffs or Sh. Chunni Lal. But the same is an evasive statement as the defendants have not stated if Dilpat is not the forefather of the plaintiffs then who else is. The court can take judicial notice of the fact that in the times of 1880's and 1900's the people were not conscious of getting their and their family member's names registered in government records. But the plaintiffs have stated on their affidavit that Sh. Dilpat was their ancestor and thus there is nothing on record to disbelieve the same.
16.The defendants have contended that PW4 Sh. Sukhbir Singh deposed in his crossexamination that it is correct that the exit of the drain for the waste water of Sh. Hari Singh, Sh. Mam chand, Sh. Maha singh & Sh. Balbir singh is through the land in dispute. Suit No. 576/2010 Page No. 10 of 12 But from this statement it cannot be said that the suit premises do not belong to the plaintiffs.
17.From the aforesaid it is clear that the rasta nos. 167 and 589 do not meet each other at the suit premises. The land in dispute falls in old lal dora which has not been touched in the consolidation proceedings. As per the revenue record of the year 1880 Sh. Dilpat and Baal have been shown in possession of gitwar of two Biswas in khasra no. 3227, which is now Khasra no. 370. Now if the said two rasta's do not meet and the land of old lal dora has not been touched in later consolidation proceedings then the suit premises exists and since as per the revenue records it is property of Sh. Dilpat and Baal and the defendant has not been able to prove that Sh. Dilpat is not the ancestor of the plaintiffs, thus, from the foregoing discussion it is manifest that the plaintiff has a prima facie case in his favour. Also the balance of convenience is in his favour. Further, the plaintiffs would suffer an irreparable loss if the defendants are not restrained.
18.In view of the foregoing discussion, I am of the view that the plaintiffs are entitled to the decree of permanent injunction. Therefore, the defendants, their agents, servants representatives etc. are hereby restrained from encroaching upon the Gher of the Suit No. 576/2010 Page No. 11 of 12 plaintiff by making out illegal rasta to the gher and also from interfering in the peaceful possession of the gher of the plaintiffs, in the old lal dora of the village Mundaka, Delhi, shown in the red colour in the site plan Ex. PW4/1.
19.Relief In view of the aforesaid discussion, the defendants, their agents, servants representatives etc. are hereby restrained from encroaching upon the Gher of the plaintiff by making out illegal rasta to the gher and also from interfering in the peaceful possession of the gher of the plaintiffs, in the old lal dora of the village Mundaka, Delhi, shown in the red colour in the site plan Ex. PW4/1. The costs of the suit is granted to the plaintiffs. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced & signed in the ( Snigdha Sarvaria) open court on 31102012. Civil Judge/Central05 Delhi Suit No. 576/2010 Page No. 12 of 12